Taking a Bite Out of the Big Apple: Law Enforcement and the Apple iPhone

On October 26, 2015, the United States government argued before a federal magistrate judge in New York that it should be able to force Apple to unlock an iPhone as part of a criminal investigation. The federal government filed a request for a court order to compel Apple to comply pursuant to the All Writs Act— an 18th Century law that allows federal courts to issue orders to effectuate otherwise valid court orders. The government argues that the federal courts can use the All Writs Act to force Apple to assist the government in investigating users of the software. Apple refuses to comply with the order.

Apple argues that the situation would not be any different than if the government used the All Writs Act to force a safe manufacturer to travel around the country, unlock safes, and give the contents of those safes to the government. Apple argues that the government wants Apple to do the investigative work for them. Judge James Orenstein, the federal magistrate judge in the United States District Court for the Eastern District of New York, agreed with Apple’s logic. Assistant U.S. Attorney Saritha Komatireddy believes that Apple’s refusal to unlock the phone represents a surprising reversal from Apple’s previous willingness to unlock phones for the government. When Judge Orenstein asked Apple why it did not challenge the previous search warrants, Apple’s attorney Marc Zwillinger replied that the company had only recently become more cognizant of the harms to high-profile data breaches and that the company has had a change of heart. But even if Apple was willing to unlock the phone, it cannot do so because each individual contains a very specific password/key to unlock the phone.

With the release of iOS 8, Apple introduced new encryption features for mobile devices. If a user is running an iOS 8 system or later, Apple cannot unlock the phone. Forcing Apple to reengineer iOS and break its privacy agreements with its customers places an unreasonable burden on Apple to conduct its business. Such an order would also raise significant constitutional issues. Forcing Apple to have backdoor updates would constitute “compelled speech” under the First Amendment. Accessing the data without a warrant might also violate both the Fourth and Fifth Amendments. Judge Orenstein ruled that Apple cannot be automatically conscripted to help the government investigate criminal matters because it is a private company that is free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement.

This case illustrates the complicated constitutional issues that will arise if the government continues to argue that private companies should help investigate criminal matters. The government should refrain from relying on laws that undermine digital security and privacy for consumers.